Employers Can Discipline Employees' Private Speech...Sometimes

Despite periodic rumors to the contrary, employers are typically not interested in policing their employees’ off-duty-conduct or in becoming their employees’ thought-patrol.  However, there are occasions in which an employee’s ostensibly “personal” off-duty statements can force an employer’s hand.  When that happens, both employees and employers are often confused about the line between unpleasant statements about which they can do nothing and those that can lead to discipline or termination. 

Part of the confusion stems from the fact that in California, employers are bound by both generally-applicable federal law, such as the National Labor Relations Act (NLRA), as well as specific state law.  Generally speaking, the NLRA protects both unionized and non-unionized employees who complain or share information about their working conditions.  Under most circumstances, an employer may not do anything to curtail or penalize that type of expression. 

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